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Citation – 508 F.3d 1146
Facts: The plaintiff in this case markets and sells copyrighted images of models (nude images). The website works on a subscription basis whereby the subscribers pay monthly fee to view these images. To view these images perfect 10 set up a members only area, the members need to use a password to log into this domain to view them. Further it licenses reduced-size copyrighted images for download and use on cell phones.
The Defendant Google operates a search engine that automatically accesses thousands of websites on the Internet and indexes them within a database stored on Google’s computers. When a Google user accesses the Google website and performs a search query, Google’s software searches its database for websites responsive to that search query. Google then sends relevant information from its index of web sites to the user’s computer. Google’s search engine provides results in the form of text, images, or videos. Google Image Search provides search results as a web page of small images called “thumbnails,” which are stored in Google’s servers. These thumbnail images are reduced, lowerresolution versions of full-sized images stored on third-party computers. When a user clicks on a thumbnail image, Google’s software directs the user’s browser to create on the user’s computer screen a small rectangular box that contains the Google thumbnail and a larger box that contains the full-size image, which the user’s computer has been instructed to access from the third-party site that houses that image (Amazon is one of these third party websites in this case).Though both the boxes appear to be coming from the same source they are actually coming from google and a third-party website. This process is called “in-line-linking”. though Google does not store these images on its server, it stores the content of the webpage in its cache, Google’s cache copy can provide a browser with valid directions to the infringing images even if the website does not have those image anymore.
Google also has a business programme called “AdSense” which generates revenue by letting website owners to register with Google and by placing HTML instructions on its web pages that signal Google’s server to place advertising on the web pages that is relevant to the web pages’ content. the participants of “AdSense” share the revenues which flow from such advertisings.
Some of the website publishers pirated perfects 10’s copyrighted images and when someone performs a search query Google automatically directs them to the webpages containing these infringing images and also provides thumbnail versions of these images to the users. Perfect 10 filed a copyright infringement action against Google, and sought a preliminary injunction to prevent Google from infringing Perfect 10’s copyright in its images and linking to websites that provide full-size infringing versions of Perfect 10’s photographs.
Procedural History: The District Court and the Court of Appeals concluded that Google had infringed Perfect 10’s right of Display. They also held that Google’s in-line linking and framing of Perfect 10’s full-size images infringed neither Perfect 10’s display rights nor its distribution rights.
Issues:Whether Google’s use of the Thumbnail images and their process of “in-line-linking” is infringing Perfect 10’s copyrights on the images and if Google can use the ‘Fair Use’ defence against this claim?
Analysis: The judges were guided by Kelly v. Arriba Soft Corp. In this case, the plaintiff, a photographer brought a copyright infringement case against Arriba, the operator of an internet search engine as the search engine provided thumbnail versions of the photographer’s images in response to search queries. It was held that there was no copyright infringement. Fair Use Analysis:
a) Purpose and Character of the use: the court has to consider the purpose and character of the use and whether such use is of commercial or non-profit educational purposes in order to determine the extent to of the ‘transformative’ nature of the new work. To constitute transformative work, the original copyrighted work should be changed and used in a different context by the defendant. In this case Google’s use of thumbnails is highly transformative as they compile the Thumbnail images with information in a distinctive manner. Further the court found that Google’s search engine provides social benefit by transforming the original work perfect 10 into something new and informative which serves as an electronic reference tool, thereby providing an entirely new use for the original work. In this case though the entire original work is taken, it serves an entirely different function than the original, and therefore the use is transformative. The significantly transformative nature of Google’s search engine, particularly in light of its public benefit, heavily outweighs Google’s superseding and commercial uses of the thumbnails with regards to Google’s AdSense.
b) Nature of the copyrighted work: Perfect 10 had already exploited the right to first publication and had gained commercially; therefore it was not entitled to get protections that are available for unpublished works.
c) The amount and substantiality of the portion used: The Third factor examines the relation between the amount and substantiality of the portion used in relation to the copyrighted work as a whole. The court says Google’s use of the entire photographic image was reasonable in light of the purpose of a search engine and since using less than the entire image would defeat the purpose of the search engine to a computer user.
d) Effects of use on the market: this factor assesses the effects of the use upon the potential market for that things/product or the value of the copyrighted work. Google’s use of thumbnails did not hurt Perfect 10’s market for full-size images. Since Google’s thumbnail images were highly transformative, and there was no evidence of market harm to Perfect 10’s full-size images any potential harm to Perfect 10’s market remains hypothetical.
Conclusion:Google’s use of Perfect 10’s thumbnails constituted fair use. This is because Google had put Perfect 10’s thumbnail images to a use fundamentally different than the use intended by Perfect 10 and therefore provided significant benefit to the public.
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